Prohibition on Misleading and Deceptive Conduct

Question: Discuss about the Prohibition on Misleading and Deceptive Conduct. Answer: Introduction: Section 18 of the seal has imposed a prohibition on misleading and deceptive conduct. The provisions of this section are quite wide while defining what can be considered as misleading or deceptive conduct. In this context, it has to be noted that any liability has not been specifically created by section in that can be found in other, law cause of action. Instead, the provisions of this section are more concerned with providing the norms of conduct that need to be followed by persons or corporations while they are involved in trade or commerce. In the present case, for the purpose of establishing that Mobileworld Operating Systems Pty Ltd. that has been trading as Crazy Js has been involved in misleading conduct when it issued advertisements in which it was claimed that the company was going to provide free mobile handsets to its customers. When the court is integrating the provisions of section 18, the ordinary meaning of the words has to be used for the purpose of deciding if the b reach of these provisions has taken place or not (Consumer Affairs, 2009). Moreover, three elements have to be satisfied in order to establish that there has been a breach of section 18 by Crazy Js. First of all the ACCC is required to establish that the conduct of Crazy Js had confused the public all it has caused uncertainty. Such conduct has to be evaluated as misleading/deceptive when it has been considered in view of its impact on a particular section of the public towards which the conduct is directed. It is not required that party should have been really misled by such conduct for the purpose of arriving at the conclusion that the conduct was misleading (Sidhu v Van Dyke, 2014). Hence, advertisements, statements or opinions when puffery is the behaviors that can be treated as a breach of section 18. In the present case, a difference may be available to Crazy Js against the allegations that the company has been involved in misleading/deceptive conduct. Hence in this case, when it has been alleged that Crazy Js has been involved in misleading/deceptive conduct, as the defense, the company may claim that the advertisements issued by it were in fact true. At the same time, some of the other differences that may be available to Crazy Js include that reasonable mistake has been made by the company and similarly it may claim that the company has relied on the information that was provided by another person (Greig, 1973). In the present case, the company may also claim that it had no reasonable grounds to believe that the advertisements issued by it may result in contravention of the provisions of Australian Consumer Law, particularly section 18 of the ACL. Hence, the company may claim in this case that according to the information provided by it in the advertisements was true and it wa s really providing mobile handsets for free to its customers (Accc v TPG Internet Pty. Ltd., 2013). At the same time, the company has also claimed in its defence that the company believes in the growth of the statements that have been made in these advertisements. Similarly, it can also be claimed by the company in its defense that the advertisements issued by it had ran during the last year and the company will no longer running these advertisements. However, the difference is not going to be successful if the company cannot establish that reasonable grounds were present for it to believe that the statements made in the advertisements were true. If the ACCC is successful in establishing that Crazy Js had been involved in deceptive or misleading conduct, there are certain remedies that can be claimed by the Commission against the company. According to the Australian Consumer Law, the following remedies can be claimed if it has been established that the defendant's conduct was deceptive or misleading and it can be considered as a contravention of section 18, ACL. Therefore in case of this contravention, the following remedies may be available for the breach of section 18. These include the remedy of damages, injunction, recession of contract and certain other measures. As a result of these remedies, a significant impact has been created on trade and commerce in Australia (Butcher v Lachland Elder Realty Pty Ltd., 2004). In the same way, even if the provisions of section 18 are part of the Australian Consumer Law, however these are not confined in their application to the consumer transactions (Carter, 2010). It also needs to b e mentioned at this point that these remedies related with deceptive/misleading conduct are independent of the remedies that have been granted by the law for the contravention of consumer guarantees. If the Australian Competition and Consumer Commission is not successful in its prosecution of Crazy Js for the breach of section 18, ACL, there are certain other provisions of the Australian Consumer Law that can be applied in the present case for the purpose of protecting the consumers. The other such relevant provision of the Australian Consumer Law is mentioned in section 29. In this context, it needs to be noted that section 29, ACL provides that a person should not make false/misleading representations concerning the supplied or promotion of goods or services (Campbell v Backoffice Investments Pty Ltd., 2009). A prohibition has been imposed by the Australian Consumer Law on false/misleading representations. A false or a misleading representations can be a statement in which it has been claimed that the goods supplied by person or a company are of a particular value, quality or standard or that the goods have a particular history. Similarly in case of services, the statement may claim that the services are of a particular standard or value. These types of representations are also prohibited by section 18, Australian Consumer Law. However, at the same time, section 18 also covers testimonials as well as the statements concerning the guarantees, warranties and conditions regarding the goods and services. Therefore in the present case is the ACCC is not successful in establishing a breach of section 18 by Crazy Js, it may allege the breach of section 29 at the company in order to protect the consumers. References Carter, J W., 2010, The Commercial Side of Australian Consumer Protection Law, 26 Journal of Contract Law 221, 223 Consumer Affairs Victoria, 2009, Warranties and Refunds in the Electronic Goods, White Goods and Mobile Telephone Industries (Research Paper No 17, May 2009) 23 Greig, D.W., 1973, Condition Or Warranty? 89 Law Quarterly Review 93 ACCC v TPG Internet Pty. Ltd. [2013] HCA 54 Butcher v Lachland Elder Realty Pty Ltd (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Sidhu v Van Dyke (2014) 308 ALR 232